SHRI D N RAMESH, Jaipur V. THE ITO 2(1), Bhopal

ITA 959/IND/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8523 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: M K SHARMA
• Keywords: Opportunity of being heard; Reasonable cause; Set aside
• Section: 143(3); 143(2)

Judgement Text

D.N. RAMESH ITANO 959/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO 959/IND/2016 ASSESSMENT YEAR 2010-11 PAN : ADUPD00388H SHRI D.N. RAMESH, V/S ITO-2(1), D-30, IIND FLOOR, BHOPAL SINGHAL ENCLAVE, GAUTAM MARG, NIRMAN NAGAR, JAIPUR (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.G . GOYAL, SR.DR ASSESSEE BY : SHRI M.K. SHARMA, CA DATE OF HEARING : 09.10.2019 DATE OF PRONOUNCEMENT : 11.10.2019 O R D E R PER SHRI MANISH BORAD, A.M. THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEARS 2010-11 IS DIRECTED AGAINST THE D.N. RAMESH ITANO 959/IND/2016 2 ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- 31 (IN SHORT LD.CIT(A)], NEW DELHI, CAMP BHOPAL DATED 10.05.20 16 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) DATED 21.03.201 3 FRAMED BY ITO- 2(1), BHOPAL. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL; 1. THAT THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.25,19,000/- TO THE TO TAL INCOME OF THE APPELLANT AS LONG TERM CAPITAL GAIN. 2. THAT THE LEARNED CIT(APPEALS) AND A.O ARE ARBITR ARY, FUNDAMENTALLY INCORRECT AND WITHOUT APPRECIATING THE CONTENTS OF THE SALE DEED OF THE PROPERTY, WHICH CLEARLY STATES THAT THE FATHER OF T HE APPELLANT WAS THE SOLE AND ABSOLUTE OWNER OF THE PROPERTY, AND THE APPELLA NT WAS MERELY A SIGNATORY O THE SALE DEED AS SON OF THE TRANSFEROR, TO AVOID ANY FUTURE CLAIM AGAINST THE PROPERTY TRANSFERRED THROUGH SUCH SALE DEED. 3. THAT THE APPELLANT RESERVES THE RIGHT TO ADD, AL TER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED, WITH THE PE RMISSION OF HONOURABLE BENCH.. 3. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DECLARED TOTAL INCOME OF RS.4,86,240/- IN THE RETURN OF INCOME FILED ON 12.07.2010 FOR ASS ESSMENT YEAR 2010-11. THE RETURN WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) DATED02.09.2011 DULY SERVED UPON THE ASSESSEE. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AFTER MAKING AD DITION OF D.N. RAMESH ITANO 959/IND/2016 3 RS.25,19,000/- ON ACCOUNT OF LONG TERM CAPITAL GAIN . AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) BUT COULD NOT SUCCEED. 4. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE T RIBUNAL RAISING SOLE GROUND CHALLENGING THE FINDING OF LD. CIT(A) C ONFIRMING THE ADDITION FOR LONG TERM CAPITAL AT RS.25,19,000/-. 5. DURING THE COURSE OF HEARING LD. COUNSEL FOR THE ASSESSEE REFERRED TO CERTAIN FACTS MATERIAL FOR THE ADJUDICA TION OF THE ISSUED RAISED BEFORE US. WHILE ARGUING HE REFERRED TO THE FINDING OF LD. CIT(A) AND MENTIONED THAT LD. CIT(A) HAS NOT STATED THE FACTS CORRECTLY IN THE APPELLATE ORDER AND MATTERS NEEDS TO BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION. 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE THOUG H DID NOT OPPOSED TO THE REQUEST MADE BY LD. COUNSEL FOR THE ASSESSEE TO SET ASIDE THE ISSUE TO THE FILE OF LD. CIT(A), BUT ALSO SUBMITTED THAT THE ASSESSEE HAS CLAIMED THAT THE PROPERTY CAME IN HIS HANDS IN THE CAPACITY AS LEGAL HEIR. HE SUBMITTED THAT AS PER HI NDU SUCCESSION ACT THE PROPERTY SHOULD HAVE BEEN DIVIDED AMONGST T HE LEGAL HEIRS AND THE CAPITAL GAIN SHOULD HAVE BEEN ACCORDINGLY O FFERED IN THE D.N. RAMESH ITANO 959/IND/2016 4 HANDS OF ALL OF THEM. THIS ASPECT NEEDS TO BE EXAMI NED AT THE END OF LD. CIT(A) DURING THE SET ASIDE PROCEEDINGS. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ASSESSEE HAS RAISED THREE GROUNDS O F APPEALS BUT THE SOLE CONTENTION IS AGAINST THE ADDITION OF RS.25,19 ,000/- FOR NOT DISCLOSING LONG TERM CAPITAL GAIN IN THE INCOME TAX RETURN. DURING THE COURSE OF HEARING LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE FACTS NARRATED BY LD. CIT(A) ARE NOT CORRECT WH ICH HAVE ITS BEARING ON THE DECISION AND MATTER NEEDS TO BE SET ASIDE FOR DECIDING AFRESH. LD. DEPARTMENTAL REPRESENTATIVE REFERRED TO HINDU SUCCESSION ACT CONTENDING THAT ALL THE LEGAL HEIR S HOULD OFFER THEIR SHARE TO INCOME IN THEIR RESPECTIVE INCOME TAX RETU RNS. 8. FURTHER FROM GOING THROUGH THE FINDING OF LD. CI T(A) WE FIND THAT THE DIRECTION OF LD.CIT(A) OF FURNISHING COPY OF RETURN FILED BY THE SELLER OFFERING THE TAX ON THE AFORESAID CAPITA L GAIN WAS NEVER SUBMITTED EVEN AFTER GRANTING VARIOUS OPPORTUNITIES . 9. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCE S OF THE CASE DIRECT THE LD. CIT(A) TO DECIDE ALL THE ISSUES RAIS ED BEFORE US IN THIS APPEAL AFRESH AFTER CONSIDERING VARIOUS CONTENTIONS MADE BY BOTH THE D.N. RAMESH ITANO 959/IND/2016 5 PARTIES AS REFERRED ABOVE IN THE PRECEDING PARAS AN D AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND DECIDE THE ISSUE. WE ALSO DIRECT THE ASSESSEE TO REMAIN VIGIL ANT TO THE NOTICE OF HEARING AND SUBMIT THE REQUIRED INFORMATION AS CALL ED FOR BY LD. CIT(A) AND SHOULD NOT TAKE ADJOURNMENT UNLESS OTHER WISE REQUIRED FOR REASONABLE CAUSE. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.20 19. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 11 OCTOBER, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT. REGISTRAR, ITAT